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Feds bring first case under new 'animal crush' video law

By TAL KOPAN

11/29/2012 06:53 PM EST

A Houston man and woman were indicted Wednesday for producing “animal crush" videos, the first federal case brought under the Animal Crush Video Prohibition Act of 2010, which was passed after the Supreme Court ruled that a previous version of the law violated the First Amendment.

The U.S. attorney in southern Texas charged Ashley Nicole Richards, 22, and Brent Justice, 51, who are already facing state animal cruelty charges, with producing eight videos that allegedly involve the torture and killing of puppies, chickens and kittens, according a release from the federal prosecutor's office. Richards and Justice face five counts of animal crush charges and two obscenity charges.

A spokeswoman for the U.S. attorney’s office of Southern Texas confirmed the Houston case is the first in the nation brought under the revised law.

In April 2010, the Supreme Court decided 8-1 in U.S. v. Stevens to strike down Section 48 of Title 18 of U.S. Code as unconstitutional. The code, Chief Justice John Roberts wrote in the opinion of the court, penalized “anyone who knowingly ‘creates, sells, or possesses a depiction of animal cruelty,’ if done ‘for commercial gain’ in interstate or foreign commerce.”

That case involved a man who sold videos of dogfighting and of dogs attacking other animals. He challenged his indictment on the grounds that Section 48 violated the First Amendment. Though the government argued the code was necessary for cases of “animal crush” and animal fighting videos, the court held “a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional.’” The court, therefore, did not discuss whether animal crush videos were a special case that could warrant an exception to the First Amendment.

“We … need not and do not decide whether a statute limited to crush videos or other depictions of extreme animal cruelty would be constitutional,” Roberts wrote for the court.

The court invalidated the law altogether as overbroad, prompting Congress in September of that year to pass the Animal Crush Video Prohibition Act of 2010, which specifically prohibited animal crush videos and defined them as “any photograph, motion picture, film, video or digital recording, or electronic image that: (1) depicts actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury; and (2) is obscene.”

The “and obscene” provision would be key if the statute were challenged anew, said First Amendment expert and University of Chicago law professor Geoffrey Stone.

“[Congress] passed this very complicated law that does not add anything to the scope of what is criminal,” Stone told POLITICO. “So as long as we stipulate that the material has to be obscene to be prosecuted under the statute, then why don’t you just prosecute you under the obscenity statute?”

The reference to obscenity also appears to limit the statute's application in several ways, including limiting it to videos that are sexual in nature.

Stone believes that if the case were to be brought to the highest court, the question at issue would be whether there is a legitimate reason to distinguish this type of obscenity from others.

With free speech restrictions, the government cannot constitutionally pick and choose what type of speech to restrict based solely on its content, as established in the hate speech case R.A.V. v. City of St. Paul. Stone compares the animal crush statute to a law creating higher penalties for purveyors of homosexual obscenity as opposed to non-homosexual obscenity – the government in both cases would need to show why the distinction serves a societal necessity.

Stone said in defense of the law, as in the comparable issue of child pornography, sometimes the government punishes selling depictions of something cruel to take away the incentive for individuals to commit the cruelty in order to profit off of it.

The animal crush statute carries a maximum penalty of seven years in prison; the obscenity statute carries up to five.